Kenya - Time Bars

Date: 25/01/2017
Author: Captain Ittiso
Source: Protecting and Indemnity (K) Ltd
Kenya - Time Bars

Limitation of Actions Act 1968- Revised  2012

Nature of ClaimTime Bar
Contract claims – Sec. 4 (1)

Actions may not be brought after the end of 6 years from the date on which the cause of action accrued.

  1. Actions founded on contract;
  2. Actions to enforce a recognizance;
  3. Actions to enforce an award;
  4. Actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
  5. Actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.
Tortious claims - Sec. 4 (2)An action founded on tort may not be brought after the end of 3 years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of 12 months from such date.
An account - Sec. 4 (3)An action for an account may not be brought in respect of any matter which arose more than 6 years before the commencement of the action.
Judgment - Sec. 4 (4)An action may not be brought upon a judgment after the end of 12 years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of 6 years from the date on which the interest became due.
Penalty or forfeiture - Sec. 4 (5)An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of 2 years from the date on which the cause of action accrued.
Disability (injury related) - Sec. 22The action may be brought at any time before the end of 6 years from the date when the person ceases to be under a disability or dies, whichever event first occurs, notwithstanding that the prescribed period of limitation has expired.

Carriage of Goods by Sea 1926- Revised 2012

Nature of ClaimTime Bar
Liability for loss or damage to goods - Sec. 6 (3)The carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within 1 year after delivery of the goods or the date when the goods should have been delivered.

Merchant Shipping Act 2009- Revised 2014

Nature of ClaimTime Bar
Maritime liens - Sec. 112 (1),(2)The maritime liens relating to a ship shall be extinguished after a period of 1 year from the time when the claims secured thereby arose unless, prior to the expiry of such period, the ship has been arrested and the arrest has led to a forced sale pursuant to the provisions of the rules of court or any other law for the time being in force relating to the sale of property in admiralty proceedings.
The one year period shall not be subject to interruption or suspension except that time shall not run during the period the lien holder is legally prevented from arresting the vessel.
Salvage proceedings - Sec. 357 (1)(2)

No action shall be instituted in respect of any salvage services unless proceedings therein are commenced within 2 years after the date on which the salvage operations were terminated; but the court may extend any such period to such extent and on such conditions as it considers fit.
An action for indemnity by a person liable may be instituted within 2 years after the date of termination of the salvage operations, but the court may extend the limitation period to such extent and on such conditions as it considers fit

Proceedings to enforce any claim or lien against a ship or her owner. - Sec. 406 (3)No proceedings shall in respect of damage or loss or for loss of life or personal injury be brought after the period of 2 years from the date when the damage or loss was caused or loss of life or injury was suffered.

Kenya Ports Authority Act 1978 - Revised 2014

Nature of ClaimTime Bar
Action or legal proceeding against the Authority - Sec. 66(b)The action or legal proceeding shall not lie or be instituted unless it is commenced within 12 months next after the act, neglect or default complained of or, in the case of continuing injury or damage, within 6 months next after the cessation thereof.

Kenya Railways Corporation Act 1978 - Revised 2012

Nature of ClaimTime Bar
Action or legal proceeding against the Corporation - Sec. 87 (b).The action or legal proceeding shall not lie or be instituted unless it is commenced within 12 months next after the act, neglect or default complained of or, in the case of continuing injury or damage, within 6 months next after the cessation thereof.

The East African Community Customs Management Act 2004 and The Subsidiary Legislations - Revised 2012.

Nature of ClaimTime Bar
Limitation of proceedings - Sec. 222Proceedings for an offence under this Act may be commenced, and anything liable to forfeiture under this Act may be seized, within 5 years of the date of the offence.

Work Injury Benefits Act (WIBA) 2007 - Revised 2012

Nature of ClaimTime Bar
Claim for compensation - Sec. 26(1)A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within 12 months after the date of the accident or, in the case of death, within 12 months after the date of death
Lapse of right to benefits - Sec. 27(1)A right to benefits in accordance with this Act shall lapse if the accident is not reported to the employer within 12 months after the date of such accident.

Notes:

  1. It would be extremely difficult to give a precise date as to when the count starts without first looking at particular facts of a case.
  2. Some carriers would close their B/Ls to the effect that “cargo is considered as delivered when it is landed and handed over into the custody of the Kenya Ports Authority or Customs Authority……….from whom the consignees would take delivery of the same”.
  3. The Kenya’s COGSA is fashioned after the Hague-Visby Rules, as amended, and although Kenya is said to be signatory to the Hamburg Rules, these have not yet been ratified.  Nor have the Rotterdam Rules.
  4. Latest version of York-Antwerp Rules are yet to be ratified.
    WIBA 2007 replaced the Workman’s Compensation Act Chap. 236 of Laws of Kenya.

About

Captain Ittiso has spent over 56 years in the shipping industry, including 30 years of sea-going experience, rising up to Chief Officer and Master of various types of vessels including container ships and bulk carriers, which sailed on international routes - to East and West Africa, to the US and South American ports, NW Europe, the Persian Gulf and South East Asian and Far East trade routes.
 
Captain Ittiso joined Protecting and Indemnity Kenya Ltd in 1994 and since then has serves as Managing Director with majority shareholding. With so many years’ experience in the industry Captain Ittiso is able to provide assistance with claims, ship and cargo surveying, crew matters and stowaways.  Over the last 22 years he has served as the Principal Marine Surveyor at the port of Mombasa, also covering other ports within the western Indian Ocean, where there have been many changes in line with the changes in the shipping industry.  In the last 22 years, the Kenya Government has taken broad steps towards revising their Maritime Laws, mostly by looking at what the rest of the world has been doing, by either copying or accepting the prevailing international treaties so that Kenya’s maritime interests are on par with the rest of the world. 
 
Historically, Kenya’s Carriage of Goods Act was based on the “old Hague-Visby Rules” but with the subsequent amendments and the advent of the Hamburg Rules and Rotterdam Rules, Kenya is now signatory to the new rules but not yet ratified them (by 2016). 
 
There is an air of excitement as Kenya is now introducing a special Marine Insurance Act 2016 which will force the local importers to buy their cargo insurance locally instead of abroad, so that only C&F Terms will be applied in the sales contracts.  It is not clear if the local cargo insurers will also give insurance cover in cases of Somali pirates attacks and subsequent capture of ships for ransom.  Although Somali pirate attacks have been on the decline for quite some time now, naval vessels are still patrolling the Red Sea and the Gulf of Aden Areas, while shipowners are advised to maintain the employment of Armed Guards on board.


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